Patent office seeks feedback about reforming software patents

Meetings in Silicon Valley and New York City to kick off dialog on patent law.

The United States Patent and Trademark Office is seeking input from the software industry about the performance of the patent system. A pair of February "roundtable" events—one in Silicon Valley and the other in New York City—will give members of the public an opportunity to comment on how to improve the quality of "software-related patents."

"Each roundtable event will provide a forum for an informal and interactive discussion of topics relating to patents that are particularly relevant to the software community," according to a notice in the Federal Register. "While public attendees will have the opportunity to provide their individual input, group consensus advice will not be sought."

One of the topics the USPTO wants feedback on relates to "functional claims." For example, software patents often seek to cover a "system and method" to perform some function. Claims written in such language can often be broad or vague. The USPTO is seeking suggestions on how to "improve clarity of claim boundaries" for patents that use this kind of language.

The USPTO envisions the February meetings as a first step toward engaging with the software industry on patent issues. To that end, it is soliciting suggestions for other topics to address in future meetings. The agency hopes to "extend and expand the dialogue between the public and the USPTO regarding enhancing quality of software-related patents."

The Silicon Valley roundtable will begin on February 12 at Stanford University. The New York roundtable will occur on February 27 at New York University.

Best, get rid of them. The necessary components are already covered by _copyright_.

Barring that, require a specific mechanism. Ever detail, every step. Just like designing a new engine. But don't allow patents on broad processes equivalent to "you burn something, which turns a cam, which through one or more mechanisms turns a wheel, thereby causing motion in a vehicle".

Getting rid of them would be nice. But I am sure there will be some there arguing for. Prefer get rid of, but at least if must keep, limit to very short terms, just long enough to cement a product's place as the innovative software that did that. Say a year or two, any longer is ridiculous as software changes and advances so fast that things instantly become common. Just think of how much technology has changed in the past 10 years... and imagine if patents didn't last so long where we could be.

Software patents need to change the way we perceive them. we should stop treating software as an invention because it's basically math, and start treating it more like art. some designs of UI for example are industry standards these days (I'm looking at you "pinch-to-zoom") and are almost trademarks. just like you can't rip off a painting or a movie and claim as your own, when it comes to presentable software there should be a limit to how alike it can be (Zynga, stop cloning other people's work). so maybe, just like with art you don't need to register anything for each creation but could be held liable if you stooped to plagiarism - that would mean ditching software patents altogether.

Though I strongly disbelieve software patents will ever be ditched (after all, all these software giants that were summoned to give their opinion hold their arsenal of patents against new competitors that they bought with good money) I do support at least shortening the holding term.

If you do not own all applicable patents or copyrights related to any and all parts of a system or systems for which you seek to patent a method of intercommunication, connection or use thereof you will not be granted a patent.

That should pretty much take care of that.

I'm sure that someone smarter than me will point out why this is unworkable, but it sounds suitably limiting to me.

The patent system guarantees a short term monopoly in exchange for the release of an invention, but right now the USPTO is handing out software patents in exchange for worthless descriptions of functionality. If you want a patent on software, have applicants release all source code (including dependent libraries) into the public domain upon filing the application. To keep the patent, all future modifications and bug fixes must also be released free of any encumbrance.

While I'd prefer a complete ban, I doubt they will even entertain the idea unless someone can organize some SOPA level protests. The best hope for a ban would be having the SCOTUS re-affirm Gottschalk v. Benson in a ruling on a software patent case.

1. Make sure all patents issued can be implemented by anyone skilled in the art. Compare a patent by e.g. Nikolai Tesla vs any of the software patents issued today. If they are full of legalese and jargon, bin them. Get people trained in the area the patent is for to review them.

2. Reduce the time software patents are valid. 20 years in the software industry is like a century for other areas. I should be more like 5 years.

3. Make sure any patent issued passes the triviality test. If it is trivial to the examiner (who should be skilled in the art), the patent should be rejected.

4. Patents should be specific and precise. A lot of software patents try and be general in scope so as to apply to more things than the original thing being patented. The wording of the patent -- specifically the description of the thing under patent -- should be precise (see also point #1).

5. Require any patent holder to have a working device that implements the patent. This is to prevent patent trolls and other non-practicing entities from aquiring patents and using them against companies that do produce things.

6. Patents that are either (a) implementations of mathematical equations, (b) algorithms, (c) business methods or (d) other available systems, but on different media that do not require any new or novel techniques should not be patentable. The last one is to prevent things like "TV ... over the internet" or "printing ... on a network" from being patentable.

7. Patents, once preliminarily granted by the patent office, should have a review period before being accepted (just like trademarks have a 2 month period where they can be challenged). Here, others in the field can review them and raise any issues (triviality, existing technology similar to the invention being patented, etc.).

My suggestion: any patent litigation automatically triggers a review of the patent in question. In my mind, this would help several areas:1) Hopefully the patent office would be less willing to rubber stamp every ludicrous application that comes across their desk.2) Litigants would be less willing to file claims on their sketchy portfolio.3) Defendents wouldn't have to bear the burden of sponsoriing the review.Everybody wins (except for the trolls), right?

If software is basically maths, as a number of posters claim, then what is engineering? Surely that's also an application of maths and so undeserving of patent protection under that logic. I agree that software patents need to be drastically scaled back or abolished, but there needs to be a reason more rooted in reality than "it's just maths." Any physicist will tell you that everything is just maths of varying complexity.

I think embedded systems will still be covered under new language, but the problem with zero protection is the flood of iClones to the market. If you think Apple was a little upset about Samsung taking advantage of their efforts in UI/UX... Of course, that kind of goes back to the simple idea that "obvious" copies can be challenged in court, even if things are only obvious in hind-sight.

Who is going to be "round" this table? It would have to be a very big table if we are "all" going to fit round it. This does not strike me as a very democratic process - we need a consultation of everyone (who gives a damn). At the moment it looks like which corporation that can bring the most to the table ("lobby money") will win - not we the people.

If software is basically maths, as a number of posters claim, then what is engineering? Surely that's also an application of maths and so undeserving of patent protection under that logic. I agree that software patents need to be drastically scaled back or abolished, but there needs to be a reason more rooted in reality than "it's just maths." Any physicist will tell you that everything is just maths of varying complexity.

Software is math in the most literal sense: it's a (long, complex) sequence of mathematical operations that happens to be encoded in machine-readable form. Other forms of engineering can be *represented* by math, but that's different. Loading a computer model of an engine onto my computer won't let me drive down the road. But loading the source code of a piece of software on my computer will let me run it.

If software is basically maths, as a number of posters claim, then what is engineering? Surely that's also an application of maths and so undeserving of patent protection under that logic. I agree that software patents need to be drastically scaled back or abolished, but there needs to be a reason more rooted in reality than "it's just maths." Any physicist will tell you that everything is just maths of varying complexity.

1. Make sure all patents issued can be implemented by anyone skilled in the art. Compare a patent by e.g. Nikolai Tesla vs any of the software patents issued today. If they are full of legalese and jargon, bin them. Get people trained in the area the patent is for to review them.

Yes, we have a term for this. It's called source code. It doesn't have to be the same code shipped in your patented product (plenty of devices go through refinement between patenting and manufacturing), but it does need to accomplish all of the claimed innovations.

This would largely prevent non-practicing entities from filing software patents, but it wouldn't prevent them from acquiring them. At least it would get rid of overly broad claims.

I'm sorry, but an algorithm isn't technically math. Yes, a lot of algorithms have math behind them, but they complete things that the math was never intended for. It's truly unique. Further, an idea like a GUI is not math, rather it actually is art. It's the idea of graphic design, the placement of objects, color, use, look, and feel. It's all unique, and not just math.

If software is basically maths, as a number of posters claim, then what is engineering? Surely that's also an application of maths and so undeserving of patent protection under that logic. I agree that software patents need to be drastically scaled back or abolished, but there needs to be a reason more rooted in reality than "it's just maths." Any physicist will tell you that everything is just maths of varying complexity.

To complement what Tim Lee said, there is literally nothing that you can do in software that you cannot also do with a pencil and a piece of paper. You might need a large piece of paper and it might take you a long time, but you will get exactly the same result.

Conversely, although you can build a bridge with a pencil and a piece of paper it will not give you exactly the same result as, say, the Golden Gate.

It's not really that difficult to tell the difference between abstract thought and the real world but certain people get an awful lot of money by claiming that there is no difference at all between them, or at least that it's very murky. Do not be fooled.

To complement what Tim Lee said, there is literally nothing that you can do in software that you cannot also do with a pencil and a piece of paper. You might need a large piece of paper and it might take you a long time, but you will get exactly the same result.

What about the contrapositive then. There are plenty of things like integration I can do on paper, but a computer could never be programmed to solve! For example the concept of infinity, as soon as you leave the world of Discreteness you enter a realm of problems computers can never solve. For example there are many theorems that have not yet been proven, try getting a computer to solve them.

The USPTO has very little to do with determining what is or is not patentable.

They are seeking input on how to refine and better define required clarify in patents. This round table in no way has any freaking chance of changing what the patent office considers a patent. That is determine by the US Code (Title 35, Chapter 10), which can be modified only by Congress.

The USPTO has very little to do with determining what is or is not patentable.

They are seeking input on how to refine and better define required clarify in patents. This round table in no way has any freaking chance of changing what the patent office considers a patent. That is determine by the US Code (Title 35, Chapter 10), which can be modified only by Congress.

I don't disagree with your conclusion (that this process will not fix the problem), but I disagree with your reasoning. Abstract thought and laws of nature have always been held to be non-patentable. The reason patents on software exist is because the courts have formalised a fundamental misunderstanding of how computers work. It's a mistake, but one that no one's quite had the stomach to correct.

Congressional action to highlight that mistake is a sufficient condition to fix the problem, in that it doesn't rely on the CAFC limiting their own political influence, but it isn't a necessary one.

The USPTO has very little to do with determining what is or is not patentable.

The reason patents on software exist is because the courts have formalised a fundamental misunderstanding of how computers work.

Then why is it that in order to do any math inside of a computer the problem has to be reformulated. If it's just math, why aren't they the same methods? In other words why does every CS department have a course on scientific computing, when it should be identical to what's taught in the calculus class? And even more to that why are there multiple solutions to the same problem, where as in math there is only one correct/canonical way of doing things?

The USPTO has very little to do with determining what is or is not patentable.

The reason patents on software exist is because the courts have formalised a fundamental misunderstanding of how computers work.

Then why is it that in order to do any math inside of a computer the problem has to be reformulated. If it's just math, why aren't they the same methods?

No, they are the same. Math is math. Doing it on paper by hand still requires breaking everything down into individual operations. Programing a computer to do the same is no different.

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In other words why does every CS department have a course on scientific computing, when it should be identical to what's taught in the calculus class?

There's more to scientific computing than applied calculus.

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And even more to that why are there multiple solutions to the same problem, where as in math there is only one correct/canonical way of doing things?

There isn't always a single correct way of doing complex problems in math or programing. There can be multiple algorithms for solving the same problem, just as there can be multiply methods of implementing the same algorithm.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.